PEOPLE v. BRAZEAL (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Abena Darkeh, J.), rendered June 2, 2022, convicting him of attempted assault in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was indicted on various charges for stabbing his husband with a kitchen knife.  In exchange for his plea of guilty to attempted assault in the second degree in full satisfaction of the indictment, the defendant was sentenced to a term of probation of five years.  At sentencing, the Supreme Court, based on a recommendation from the probation department, imposed a condition of probation (hereinafter Condition No. 28) requiring the defendant to consent to searches by a probation officer of his person, vehicle, and place of abode, and the seizure of any weapons or other contraband discovered during those searches.  The defendant appeals.

Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970;  People v. Thompson, 225 A.D.3d 713, 714, 206 N.Y.S.3d 715;  People v. Cabral, 223 A.D.3d 839, 839, 203 N.Y.S.3d 702).  The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v. Cabral, 223 A.D.3d at 839, 203 N.Y.S.3d 702).  However, the defendant correctly asserts, and the People do not dispute, that his challenge to Condition No. 28 survives his waiver of the right to appeal (see People v. Velardo, 228 A.D.3d 520, 521, 211 N.Y.S.3d 382;  People v. Dranchuk, 203 A.D.3d 741, 742, 160 N.Y.S.3d 653;  People v. Mead, 133 A.D.3d 1257, 1258, 20 N.Y.S.3d 776).

“Pursuant to Penal Law § 65.10(1), the conditions of probation ‘shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him [or her] to do so’ ” (People v. Mensah, 221 A.D.3d 732, 733, 199 N.Y.S.3d 637).  “In Penal Law § 65.10(2), the Legislature set forth a list of conditions intended as rehabilitative” (People v. Joseph D., 226 A.D.3d 922, 923, 209 N.Y.S.3d 516), including “a catchall provision which allow[s] ․ courts to set ‘any other conditions reasonably related to [the defendant's] rehabilitation’ ” (People v. Hakes, 32 N.Y.3d 624, 629, 94 N.Y.S.3d 221, 118 N.E.3d 883, quoting Penal Law § 65.10[2][l]).  Sentencing courts may also impose conditions “requir[ing] that the defendant comply with any other reasonable condition ․ necessary or appropriate to ameliorate the conduct which gave rise to the offense or to prevent the incarceration of the defendant” (Penal Law § 65.10[5];  see People v. Hannah, 65 A.D.3d 1378, 1379, 887 N.Y.S.2d 140).  Therefore, sentencing courts may require a defendant to consent to searches by his or her probation officer for weapons or other contraband, so long as the condition is “reasonably related to the defendant's rehabilitation, or necessary to ensure that the defendant will lead a law-abiding life” (People v. Mensah, 221 A.D.3d at 733, 199 N.Y.S.3d 637;  see People v. Hale, 93 N.Y.2d 454, 461, 692 N.Y.S.2d 649, 714 N.E.2d 861).  To satisfy this standard, courts must ensure that the condition is “individually tailored in relation to the offense” (People v. Dranchuk, 203 A.D.3d at 743, 160 N.Y.S.3d 653) and the defendant's particular circumstances, including his or her “background, history, and proclivities” (People v. Hale, 93 N.Y.2d at 461, 692 N.Y.S.2d 649, 714 N.E.2d 861;  see People v. Acuna, 195 A.D.3d 854, 855, 145 N.Y.S.3d 831).

Here, the Supreme Court properly imposed Condition No. 28 upon the defendant.  “[G]iven that [the] defendant used a weapon during the underlying offense, along with his history of violence ․, the imposition of the condition was ‘reasonably necessary to insure that [he] will lead a law-abiding life or to assist him to do so’ ” (People v. Scott, 226 A.D.3d 443, 443–444, 208 N.Y.S.3d 170, quoting Penal Law § 65.10[1];  see People v. Fields [Siean], 84 Misc.3d 19, 21, 216 N.Y.S.3d 811 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists.];  cf.  People v. Mensah, 221 A.D.3d at 733, 199 N.Y.S.3d 637).  To the extent the defendant asserts that the imposition of this condition was improper because he did not consent to it as part of the plea agreement, his contention is without merit (see CPL 410.10[1];  People v. Gravino, 14 N.Y.3d 546, 559, 902 N.Y.S.2d 851, 928 N.E.2d 1048;  People v. Bermudez, 171 A.D.3d 777, 778, 95 N.Y.S.3d 839).

The defendant's remaining contentions either are without merit or need not be reached in light of our determination.

CONNOLLY, J.P., CHRISTOPHER, DOWLING and VENTURA, JJ., concur.